Archive: MSA

Effective from March 4th, 2025 to 11/6/25 

MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (the “Agreement”) is entered into by and between Productiv, Inc., a Delaware Corporation with offices at 658 High St, Palo Alto, CA 94301 (“Productiv”) and [Insert customer name], a [State] corporation with offices at [insert address] (“Customer”), effective as of the last date of signature below (the “Effective Date”). 

1. 1. Definitions. 
      1. “Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 
      2. “Authorized User” means an employee or contractor who is authorized by Customer to use the Services or submit Customer Data.
      3. “Customer Data” means data related to Customer’s organization, SaaS application usage and spend, and other information (including Personal Data), submitted by or on behalf of Customer to the Subscription Services.  As used herein, “submit” includes providing data via a Non-Productiv Application, upload, or otherwise transmitting to the Subscription Services.   For clarity, Customer Data includes Customer’s SaaS vendor agreements.
      4. “Documentation” means Productiv’s product documentation for the applicable Services made available via https://help.productiv.com/ (or a successor site). 
      5. “Evaluation Services” means features or functionality that Productiv may make available to Customer to try, at its option, and which may be designated by Productiv as a beta, limited release, essentials, evaluation, pilot, proof-of-concept (POC) or by a similar description.
      6. “Non-Productiv Application” means any web-based, offline, mobile, or other software applications provided by Customer or a Customer third party service provider that may interoperate with or be managed by the Services.
      7. “Order Form” means an ordering document (including any online order) specifying the Services to be provided hereunder that is entered into between Customer and Productiv.  
      8. “Security Practices” means Productiv’s security practices set forth in https://productiv.com/legal/security-practices/.
      9. “Services” or “Subscription Services” means the cloud-based SaaS Intelligence platform, analytics and services provided by Productiv. Services excludes Non-Productiv Applications. 
      10. “Subscription Term” means the period of time set forth in an Order Form during which Customer may access and use the Services.
      11. “Support” means the technical support provided by Productiv for the applicable Services plan.

1. 1. Productiv Obligations.
      1. 1. Provision of Subscription Services. Productiv will (i) make the Services purchased under an Order Form available to Customer during the applicable Subscription Term and pursuant to this Agreement; (ii) provide standard Support to Customer at no additional charge, or, upgraded Support, if purchased; and (iii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime (of which Productiv gives prior electronic notice).  
         2. Changes. Productiv may change, modify or republish the Services and reserves the right to discontinue individual features within the Services from time to time and will provide notice of such changes to customers via the Services web portal or website. Notwithstanding the foregoing, Productiv agrees that it will not materially diminish the overall functionality of the purchased Services during an Order Term and furthermore, that a breach of this commitment shall be deemed a material breach under Section 5(b) below.    
         3. Data Security. Productiv will maintain administrative, physical, and technical safeguards for the security, confidentiality and integrity of Customer Data at a level not materially less protective than as described in the Security Practices.  While providing the Services to Customer, Productiv may process Customer Data that includes information relating to an identified or identifiable natural person (“Personal Data”). The parties agree that the Data Processing Addendum set forth at https://productiv.com/legal/dpa/ forms a part of and supplements this Agreement with respect to the processing of any such Personal Data.  
         4. Productiv Personnel. Productiv will be responsible for the performance of Productiv’s personnel (including Productiv’s employees and independent contractors) and their compliance with Productiv’s obligations under this Agreement.
         5. Evaluation Services. From time to time, Customer may be invited to try Evaluation Services at no charge for a free trial, preview or evaluation period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) THE EVALUATION SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND (II) PRODUCTIV SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE EVALUATION SERVICES, INCLUDING WITH RESPECT TO THEIR PERFORMANCE, SPEED, FUNCTIONALITY, SECURITY, SUPPORT, AND AVAILABILITY. Unless otherwise stated on a relevant Order Form, Productiv may discontinue Evaluation Services at any time in its sole discretion. Customer is solely responsible for backing up and/or exporting Customer Data from the Evaluation Services prior to termination of Customer’s access to the Evaluation Services for any reason.

1. Access and Use of Services.
   1. 1. Use of Services and Documentation. Subject to the terms of this Agreement and the applicable Order Form, Productiv grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable (except in compliance with the Assignment clause) right during the applicable Subscription Term to allow its Authorized Users to access and use the Services and Documentation, solely for Customer’s internal business operations.
      2. Provision of Implementation Services and License. Subject to the terms of this Agreement and the applicable SOW, Productiv will provide implementation services to Customer. All information, documents, work products or other materials shared with or provided to Customer by Productiv in connection with the implementation services shall be “Productiv Materials”.  Subject to payment of the applicable fees in the SOW, Productiv hereby grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable (except in compliance with the Assignment clause) license to use the Productiv Materials, solely for purposes of Customer’s internal business operations in connection with Customer’s use of the Productiv Services. Productiv retains all ownership rights to the Productiv Materials. For clarity, Productiv Materials do not include any Customer Data or Customer’s name, trademarks, logos and other information provided by Customer to Productiv (“Customer Materials”). 
      3. Customer Obligations and License. Customer will be responsible for: (i) all activities conducted under its account and its Authorized Users’ use of the Services; (ii) securing all access credentials provided by Productiv; (iii) access and use the Services in compliance with this Agreement, the applicable Order Form, and all applicable laws; (iv) the accuracy, quality and legality of Customer Data, and possess sufficient rights to permit the use contemplated under this Agreement; (v) complying with its agreement(s) for any Non-Productiv Application with which Customer elects to use in connection with the Services; and (vi) not (a) accessing the Services for the purpose of building a competitive product or service, (b) copying or creating derivative works based on the Services, or any portion thereof, and (c) reverse engineering, modifying, adapting, or disrupting the proper operation of the Services, or otherwise attempting to gain unauthorized access to the Services or its related systems or networks.  Subject to Section 6, Customer grants Productiv and its Affiliates a worldwide, non-exclusive, royalty-free right and license to access, use, copy, distribute, host, display and use Customer Data for the sole purpose of providing the Services to Customer during the Term.
      4. Removal Requests. Productiv has no obligation to monitor Customer’s use of the Services, but Productiv may do so and may prohibit any use of the Services or disable content or data it believes in good faith violates Sections 3(a) or 3(c). 
      5. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by Productiv regarding future functionality or features.
      6. Non-Productiv Applications. If Customer wishes to use a Non-Productiv Application with a Service, Customer grants Productiv permission to connect the Service with the Non-Productiv Application to receive and process Customer Data on its behalf in accordance with this Agreement.
      7. Gen AI Based Features – Terms of Use.  Certain portions of the Services provided by Productiv may be facilitated or powered through the use of Generative AI derived from large language models (collectively, “Gen AI Based Features”).  Productiv will not use Customer Data to train any Gen AI Based Features. Customer acknowledges that responses or results produced by Gen AI Based Features are provided on an “as-is” basis, without warranties of any kind, whether express or implied, including any implied warranties of accuracy, reliability, fitness for a particular purpose or non-infringement.  Customer should verify the validity of results generated from the use of Gen AI Based Features.  Productiv shall not be responsible for loss or damage resulting from the use of results generated by Gen AI Based Features. A reduction or elimination of any Gen AI Based Feature which Productiv provides on a no-cost basis, shall not be deemed a material reduction in the functionality of the Services.  If Customer does not wish for a specific Gen AI Based Feature to be available to its Authorized Users, a written request must be submitted to Productiv at [email protected] and following receipt, Productiv shall promptly remove all access to the Gen AI Based Feature. 

    

2. Fees.
   1. Services Fees. Customer will pay Productiv the applicable fees for the Services specified in the relevant Order Form (collectively, the “Fees”).  Except as expressly set forth in this Agreement or in any applicable Order Form: (i) Fees are quoted and are due and payable in United States Dollars, net of taxes; (ii) Fees paid are non-refundable; and (iii) payment obligations are non-cancelable.  If Customer’s use of the Services exceeds any applicable limits or otherwise requires the payment of additional fees as set forth in the Order Form, Customer shall be invoiced for such usage and Customer agrees to pay the additional Fees. 
   2. Invoices and Payment Terms. Fees will be invoiced in advance and otherwise in accordance with the relevant Order Form. Productiv will bill Customer through invoices sent via email to the billing contact designated by Customer. Unless otherwise agreed in the relevant Order Form, full payment for invoices issued must be received within thirty (30) days from the invoice date. 
   3. Taxes. Except for those taxes based on Productiv's net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for the Services provided by Productiv be subject to withholding tax by any government, Customer will reimburse Productiv for such withholding tax. 
   4. Fee Disputes.  Any good faith disputes regarding invoices must be raised by Customer in writing within thirty (30) days of receipt of such invoice. Customer and Productiv will diligently work to address such contested amounts, provided, however, that Customer will remain responsible for promptly paying any undisputed portion of an invoice. Unpaid amounts which are not disputed in good faith are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
3. Term. 
   1. Agreement Term. This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated (the “Term”). The Subscription Services commence on the start date and continue for the Subscription Term specified in the applicable Order Form. Except as otherwise specified an Order Form, all purchases will automatically renew for additional periods equal to the then-current Subscription Term, unless either party gives the other written notice of non-renewal (email permitted) at least thirty (30) days prior to the end of the relevant Subscription Term. If an Order Form is not renewed, Customer will lose access to the expiring Services within twenty-four (24) hours of the last day of the Subscription Term. The Fees during any automatic renewal term will be the same as the then-current fees, unless Productiv has provided notice prior to the end of the Subscription Term of a fee adjustment. Termination of this Agreement will terminate any and all Order Forms under this Agreement. 
   2. Termination for Cause. Either party may terminate this Agreement if the other party commits any material breach of this Agreement and fails to remedy such breach within 30 days after receipt of written notice together with a reasonably detailed description of such breach.
   3. Refund or Payment upon Termination for Cause. Upon any termination for cause by Customer, Productiv will refund Customer any prepaid fees of all subscriptions covering the remainder of the Subscription Term after the effective date of termination. Upon any termination for cause by Productiv, Customer will pay all outstanding invoices and any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will any termination relieve Customer of the obligation to pay any fees payable to Productiv for the period prior to the effective date of termination.
   4. Suspension of Service. If any undisputed charge owed by Customer (excluding amounts reasonably disputed in good faith) is thirty (30) days or more overdue, Productiv may, without limiting its other rights and remedies, suspend any Services until such amounts are paid in full, provided Productiv has given Customer at least ten (10) days’ prior written notice that its account is overdue, which may be provided to Customer’s designated billing contact via email.  Productiv will lift the suspension upon its receipt of past due amounts from Customer.
   5. Portability and Deletion. If requested by Customer prior to the termination or expiration of the Term,  Productiv will permit Customer to access the Subscription Services for ten business days following the termination date solely as necessary to download a copy of the Customer Data then stored by Productiv. Within 60 days following the date of termination, Productiv will, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession. 
   6. Surviving Provisions. The sections titled “Fees,” “Proprietary Rights,” “Confidentiality,” “Representations, Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination for Cause,” “Portability and Deletion,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.
4. Proprietary Rights.
   1. Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, Productiv owns and reserves all rights, title and interest in and to the Services and Documentation, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
   2. Reservation of Rights in Customer Data. Subject to the limited rights expressly granted hereunder, Customer owns all rights, title and interest in and to its Customer Data. 
   3. Aggregate Usage Data.  Productiv may aggregate de-identified Customer Data together with data from other Productiv customers, to generate and retain data about Productiv customers and information relating to the provision, use and performance of the Services (“Aggregate Usage Data”). Productiv may use and disclose Aggregate Usage Data to develop, improve and deliver the Services and other offerings or otherwise operate its business, provided that disclosures will not identify Customer, any Customer personnel, or any Confidential Information (defined below) of Customer to any third party. 
   4. Feedback. If Customer or any Authorized User provides Productiv any feedback or suggestions regarding the Services or Evaluation Services (“Feedback”), then Customer grants Productiv an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such Feedback for any purpose without any obligation or compensation to Customer or any Authorized User.  Feedback will not include any Personal Data or Customer Confidential Information.  Productiv acknowledges and agrees that any such Feedback is provided by Customer on an “as-is” basis without warranties of any kind, and Customer shall have no liability whatsoever with respect to Productiv’s use of any such Feedback.
5. Confidentiality.
   1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data, Confidential Information of Productiv shall include the Services and Documentation, and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as any non-public business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
   2. Protection of Confidential Information. The Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); and (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.  Either party may disclose Confidential Information to its Affiliates, employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations at least as stringent as those herein; or as required by law, in which case the party disclosing the other’s information to any third party will (if permitted by law and to the extent practicable) (i) provide the other with (a) prior written notification thereof and (b) the opportunity to contest such disclosure; and (ii) use reasonable efforts to minimize such disclosure. Each party will exercise due care in protecting Confidential Information from unauthorized use and disclosure and will promptly notify the other in writing if it becomes aware of any violations of confidentiality obligations set forth herein.
   3. Publicity. The parties acknowledge and agree that the pricing and discounts extended under the relevant Order Form are contingent on Productiv’s limited right to use Customer’s company name and logo for marketing or promotional purposes on Productiv’s website, LinkedIn and in public or private communications with existing or potential Productiv customers, which Customer hereby grants, subject to Customer’s standard trademark usage guidelines as provided to Productiv from time to time. Any additional promotional use of Customer’s name and logo must be approved by Customer in writing.
6. Representations, Warranties and Disclaimers.
   1. Mutual Representation. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
   2. Productiv Warranty. Productiv warrants that: (i) the Services will perform materially in accordance with the Order Form and any applicable Documentation; (ii) the Services will be performed in a professional and workmanlike manner, in accordance with accepted industry standards; and (iii) Productiv will follow industry-standard practices to mitigate the risk of introduction of computer viruses or malicious code (“Harmful Code”) to the Productiv Services and maintain tooling for the detection and response in the event that Harmful Code is introduced.  For any breach of an above warranties, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Refund or Payment upon Termination.” 
   3. Warranty Exclusions.  The foregoing warranties shall not apply to any errors or defects in Services resulting in whole or in part from: (i) Customer’s use of the Services in a manner not conforming with the terms herein; or the applicable Documentation; (ii) modification of  the Services by or on behalf of Customer without Productiv’s express, prior, written consent; (iii) Customer Data or Customer Materials; or (d) Customer’s use of any Non-Productiv Applications or  portions of applications, products or services not provided by Productiv.
   4. Customer Warranty.  Customer warrants that it has the necessary rights, title, license, consent, permission, waivers and releases to use, make available and distribute Customer Data, the Customer Materials and Non-Productiv Applications in connection with the Services.
   5. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES, DOCUMENTATION, SUPPORT AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND PRODUCTIV EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT PRODUCTIV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. PRODUCTIV STRICTLY DISCLAIMS ALL WARRANTIES REGARDING AND DOES NOT SUPPORT ANY NON-PRODUCTIV APPLICATION.
7. Limitation of Liability.  
   1. LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES.  IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
   2. LIMITATION OF LIABILITY.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE “GENERAL LIABILITY CAP”).  THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
   3. EXCEPTIONS TO THE LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH ABOVE, THE LIMITATIONS SET FORTH IN SECTIONS 9(a) AND 9(b), SHALL NOT APPLY TO (i) CUSTOMER’S PAYMENT OBLIGATIONS, (ii) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 BELOW, OR (iii) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
   4. ENHANCED LIABILITY CAP.  NOTWITHSTANDING THE LIMITATION SET FORTH IN SECTION 9(a) ABOVE, A PARTY’S AGGREGATE LIABILITY ARISING FROM ITS BREACH OF CONFIDENTIALITY OR THE DPA WHICH RESULTS IN THE UNAUTHORIZED ACCESS TO, USE OR DISCLOSURE OF CUSTOMER DATA SHALL NOT EXCEED TWO (2) TIMES THE GENERAL LIABILITY CAP.
8. Mutual Indemnification.
   1. Productiv Indemnification. Productiv shall defend Customer and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against a suit or proceeding by a third party alleging that the Services provided by Productiv hereunder, or use of such Services by Customer, violates, infringes or misappropriates a third party’s intellectual property right (a “Claim Against Customer”), and shall indemnify Customer for any damages, attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided, however, that Productiv shall have no liability under this Section 10(a) to the extent a Claim Against Customer arises from (i) Customer Data or a Non-Productiv Application; (ii) Customer’s negligence, misconduct, or breach of this Agreement; or (iii) any modification, combination or development of the Services that is not performed by Productiv, including the use of any APIs.
   2. Customer Indemnification. Customer shall defend Productiv and its Affiliates, and its and their respective officers, directors, employees and contractors, from and against a suit or proceeding by a third party alleging that Customer’s provision or use of Customer Data hereunder violates a third party right or agreement, or applicable law (each, a “Claim Against Productiv”), and shall indemnify Productiv for any damages, attorney fees and costs finally awarded against Productiv as a result of, or for any amounts paid by Productiv under a court-approved settlement of, a Claim Against Productiv; provided, however, that Customer shall have no liability under this Section 10(b) to the extent a Claim Against Productiv arises from Productiv’s breach of this Agreement.
   3. Indemnification Procedure. The indemnified party will provide the indemnifying party with (i) prompt written notice of any claim, suit or demand, (ii) the right to assume the exclusive defense and control of any matter that is subject to indemnification, and (iii) cooperation with any reasonable requests assisting the indemnifying party’s defense and settlement of such matter at the indemnifying party’s expense.
   4. Exclusive Remedy. THIS SECTION 10 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY CLAIM FOR WHICH A PARTY HAS AN OBLIGATION OF INDEMNITY, TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9. Insurance.  During the term of this Agreement, and at its own expense, Productiv will maintain the following insurance coverage in connection with the Services, with insurance carriers rated A- or better by A.M. Best Company: (i) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $2,000,000 per occurrence and $4,000,000 in aggregate; (ii) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $500,000 each accident/$500,000 each disease/$500,000 policy limit per occurrence, Disability and Unemployment Insurance; and (iii) Professional Errors and Omissions coverage (including cyber liability) covering the Services rendered in this Agreement, with coverage limits of not less than $5,000,000 per claim or per occurrence/$5,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.  Promptly following Customer’s written request, Productiv will provide the Customer with certificates evidencing the foregoing coverage.
10. General Provisions.
    1. Compliance with Laws. Each party agrees to abide by all laws, ordinances and regulations (whether international, federal, state, local or provincial) to the extent applicable to its performance under this Agreement.  
    2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    4. Notices. Productiv may give general notices for Subscription Services applicable to all customers via the Subscription Services web portal/website. Except as otherwise set forth herein, all legal notices under this Agreement will be in writing addressed to the parties at the address set forth in the preamble of this Agreement and will be deemed to have been duly given (a) when received, if personally delivered; (b) the first business day after sending by email; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
    5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
    6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
    7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld); provided that either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 
    8. Governing Law; Venue; Waiver of Jury Trial; Fees. This Agreement will be governed by the laws of the State of Delaware, USA, exclusive of its rules governing choice of law and conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts of the State of Delaware and the parties hereby consent to the personal jurisdiction of these courts. In the event of actual or threatened breach of confidentiality obligations, the non-breaching party may seek specific performance, immediate injunctive and other equitable relief in any competent court without prejudice to any other rights or remedies.  Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
    9. Export Compliance. Each party will comply with applicable export control and economic sanctions laws and regulations when providing or using the Services, Productiv Materials or Customer Materials. Without limiting the foregoing, (i) Customer warrants that neither it nor any party that wholly or partially owns Customer is listed on or acting on behalf of and will not act on behalf of any U.S. government list of prohibited or restricted parties or organized, headquartered or located in (or a national of) a country that is subject to an U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country (an “Embargoed Jurisdiction”), (ii) Customer will not (and will not permit any third parties to) access or use the Services or Productiv Materials from an Embargoed Jurisdiction or in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to Productiv or in the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.  
    10. Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including but not limited to earthquake, flood, or other natural disaster, “acts of God”, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
    11. Entire Agreement. This Agreement, including linked terms incorporated by reference, and all exhibits, addenda and Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning Customer’s purchase and use of the Services. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer, as well as any non-disclosure agreement previously entered by the parties. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in or accepted by Productiv during a vendor onboarding process or web portal, a Customer purchase order, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

The parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. This Agreement may be executed and delivered by PDF counterparts or electronic signatures and such execution and delivery will have the same force and effect of an original document with original signatures.